Rowland, J.There are four appellants: No. 1, Yusuf Mia alias Isu, aged twenty-six, has been convicted u/s 397, I.P.C., and sentenced to seven years rigorous imprisonment; No. 2, Hafiz Mia, aged twenty seven, has been convicted u/s 392 and sentenced to five years rigorous imprisonment; No. 3, Rahim Mia, aged forty-five, and No. 4, his son Lakku Mia aged eighteen years, have also been convicted u/s 392 and each sentenced to five years rigorous imprisonment. The convictions were based on majority verdicts of a jury, who by a majority of four to one found Yusuf and Hafiz guilty and by a majority of three to two found Lakku and Rahim guilty under the Sections under which they have been convicted.

2. The prosecution case was that these four with three other persons trespassed at night into the paddy field of Sudin Sahu (P. W. 1). Sudin Sahu and his son Gainu were keeping watch over the paddy in an improvised hut. They awoke and ran at the thieves whereupon they were assaulted by Hafiz and Yusuf, the latter of whom with a lathi inflicted grievous hurt by breaking the arm of Sudin. Alarm being raised, the miscreants ran away. Rahim and Lakku are said to have been recognized standing by with lathis. They are related to the other accused. The only eye-witnesses of the occurrence were Sudin and his son Gainu; and the Additional Sessions Judge correctly told this to the jury. The testimony of these two witnesses in Court was not corroborated by recovery of any stolen property from the possession of any of the accused. So far as the fact of the incident was concerned, it was confirmed by the finding of cut paddy and by medical evidence as to the injuries on the persons of Sudin and Gainu. But as regards the identity of the persons concerned in the theft and beating, the only corroboration which the prosecution could attempt to give was corroboration by statements made by the victims to witnesses after the occurrence.

3. The principal objection to the charge is that the learned Additional Sessions Judge did not give the jury the assistance to which they were entitled to dealing with the several cases of the individual accused and in distinguishing the different stages at which statements were reported to have been made by Sudin. In the petition of appeal reference is made to an alleged misdirection in the matter of the omission of the prosecution to examine witnesses Jugeswar Chamar and Sono Gop: also that there was misdirection in dealing with witnesses whose statements before the committing Magistrate and in the Sessions Court did not tally and that there was misdirection in the comment on discrepancies between statements to the police and statements at the trial.

4. As regards the withholding of two witnesses Jogeswar Chamar and Sono Gop, the Judge told the jury on the authority in Ibrahim v. Emperor AIR 1935 Pat. 95

that the Public Prosecutor is not obliged to examine persons as prosecution witnesses if he has reason to believe that they would not support the prosecution nor the court is bound to examine any person as a court witness unless the witness appeared to be essential to the just decision of the case;

and he told the jury that the witnesses had been gained over and that he did not think it was essential to examine them as court witnesses. He did not give the jury any assistance in deciding whether to draw any inference from the failure of the prosecution to call these witnesses.

5. Now, I find that in deciding Ibrahim v. Emperor AIR 1935 Pat. 95 certain observations were made with reference to the facts of that particular case. It was said that the Assistant Sessions Judge had dealt with the matter of witnesses not examined in Court very fully in his order, sheet and

that the Public Prosecutor was not obliged to examine Maqbul and Baldeo as prosecution witnesses, if he had reason to believe that they would not support the prosecution case. Nor was the Court bound to examine any person as a court witness, unless the evidence of such person appeared to be essential to the just decision of the case.

6. Those were observations made with particular reference to Maqbul and Baldeo and to the circumstances of that particular case. It would be wholly inappropriate to take those remarks as laying down a gene, ral proposition with regard to the effect of and the inference to be drawn or not to be drawn from the absence of relevant witnesses from the witness-box. That is a matter to be considered with reference to the circumstances of each particular case and the facts which the witness, if called, would have been required to prove; and the jury should have been asked to consider it in the light of those circumstances and those facts.

7. Now, let us see what was the position of the witnesses Sono and Jogeswar in the present case Immediately after the occurrence, alarm was raised and there came from the village Sono, Manku and Jogeswar to the spot. These three persons assisted Gainu in bringing Sudin to his home. To these three Sudin made his earliest statement as to the persons who had committed the theft and assaulted him. They were therefore next to Sudin himself the most important and the best witnesses to say what statement was made by Sudin and what accused persons were implicated by him immediately after the occurrence. Of these three Manku only has been examined and not the other two. Mankus evidence is that at that stage Sudin named Yusuf and Hafiz but did not name Bahim or Lakku. Mankus statement appears to have been consistent throughout on this point up to his examination in chief in the Sessions Court.

8. In cross-examination he says at one point that "Sudin mentioned only the names, Isso (Yusuf) and Hafiz as the thieves"; but a little later he says "Sudin mentioned some other names which I could not follow". Before the Magistrate however he had said definitely that "Sudin did not mention the name of anybody else as thieves or his assailants". The learned Judge should have pointed out to the jury that Manku was the only witness to prove what was the earliest statement made by Sudin; that Mankus evidence went to disprove Sudins claim to have named accused 3 and 4, and that the only other witnesses available, Sono and Jogeswar, were withheld by the prosecution. He should not have invited the jury to assume that Sono and Jogeswar were gained over.

9. He should have pointed out that the Other witnesses to whom Sudin made state, ments do not tell us what he said immediately after the occurrence, but later, after he had been brought to his house and when villagers came there; and he should have explained to the jury the special significance which they ought to attach to the earliest statement as distinguished from the later statements of Sudin. The persons who are said to have come to Sudins house are Patwari Gop, Lachuman Gop, Kartik, Mango, Baisakbi, Ganpati and Munni.

10. There is also mention of two others, Ghinu and Kagju, as having come. Ghinu and Kagju have not been called and the other witnesses are not unanimous as to whether they came. Kartik and Ganpati were merely tendered for cross-examination and Kartik in cross-examination says that he did not go to Sudins house till next morning. There is however sufficient evidence as to what Sudin said at this second stage; and what was said at that stage is obviously of less importance than what was said in the earlier stage. When the prosecution have produced sufficient evidence and the best evidence it is not always incumbent on them to produce all possible evidence on the less important facts. Of the witnesses who have been produced, the majority (Kartik, Baisakhi and Munni) have not supported the case of Sudin and he was all along naming all four accused. These witnesses have deposed that he gave out two names, Hafiz and Yusuf. Only two witnesses, Patwari and Lachuman, support the case for the prose, cution that all four names were given out. But with reference to Patwari, it has been elicited in the cross-examination of the Sub-Inspector that this witness when examined by him, did not mention that the names of Rahim and Lakku had been given out by Sudin.

11. As to this, it is contended that the charge misdirected the jury in advising them to bear in mind that

statements made to the police during investigations are recorded in the most haphazard manner. Officers conducting an investigation not unnaturally record what seems in their opinion material to the case at that stage and omit many matters equally material, and, it may be, of supreme importance as the case develops. Besides that, in most cases they are not experts of what is and what is not evidence. The statements are recorded hurriedly in the midst of a crowd and confusion, Subject to frequent interruption and suggestions from bystanders.... There is no guarantee that they do not contain much more or much less than what the witness had said.

12. These observations appear to be taken verbatim from remarks made by Knox, J. in Queen Empress v. Naziruddin (1894) 16 All. 207 presumably with reference to methods of investigation in the United Provinces 44 years ago and perhaps based upon the learned Judges experience in the mofusil some years before that. I would deprecate the giving of advice to the jury to treat all kinds of statements to the police as of one level of unreliability. If it is the prosecution case that the Sub-Inspectors notes in any particular instance are unreliable, that should be brought out in the course of the evidence of the particular officer or it may appear on the face of the notes themselves. Speaking for myself, I much regret the prevailing practice of not bringing on the record what the witness according to the note has actually said.

13. The Criminal Procedure Code requires the Court to refer to the statements as a preliminary to directing that the accused should have a copy and whether the statements are exhibited or not, it is constantly found that only by reference to them can it be understood what is really meant by the answers elicited from the witness or the Sub-Inspector in cross-examination. But whether a discrepancy or omission is effective to contradict a witness in any particular case depends on the nature of the fact in question as well as the fullness with which the statement has been recorded. An omission may amount to contradiction if the matter omitted was one which the witness would have been expected to mention and the Sub-Inspector to make a note of in the ordinary course. Every detail is not expected to be noted, but the names of accused persons are among the most important of such matters which any Sub-Inspector who knows his work would not fail to take down from the lips of the witness.

14. Therefore I do not think that the jury were properly directed in dealing with an omission of this kind by the learned Judge merely citing those observations from a decision of forty-four years ago instead of drawing attention to the distinction between important and immaterial omissions, and inviting the jury to apply it.

With regard to the witness Kartik, this witness has told the Court that two names were given out to him on the morning following the occurrence. To the police he does not appear to have disclosed that he was told the names of any accused and in the committing Magistrates Court he says he did not ask and was not told. The Sessions Judge told the jury, that depositions recorded by the Magistrate are substantive evidence and he said,

and it is for you to choose between their statements before this Court and the Court of the committing Magistrate as both statements are evidence of the facts stated therein.

15. The learned Judge appears to have invited the jury to treat any differences very lightly, on the ground that not only investigating police officers but committing Magistrates are also concerned only with making inquiries leading up to the trial before the Sessions Court and are not concerned with making a detailed record of the statements of witnesses. Now it is true that a committing Magistrate is not holding a trial but only an inquiry leading up to a trial; but the fact remains that he is recording evidence just as much as a Sessions Judge himself, and it is his duty to record the evidence fully in order that the accused may have ample notice of the matter with which he is charged and of the evidence by which the prosecutor seeks to prove the case.

16. In fact, if the prosecutor at the trial intends to lead any further evidence of substance beyond what has been adduced in the committing Magistrates Court it is well recognized that the correct procedure is that he gives the accused notice of this new matter in his opening address at the trial. The learned Judge was perhaps plagiarizing an observation which occurred in a charge delivered by another Sessions Judge which on appeal to this Court was held to have been a good charge.

17. If he had read further, be would have found that in that charge the learned Judge went on to tell the jury:

It is always (or you to decide whether the omissions are due to these circumstances or because evidence has been substantially concocted to support the prosecution case.

18. This, I think, was the statement of principle which this Court on appeal approved, and which the learned Judge has in this case missed. Coming now to the broader aspects of the case, it is not in every case when the charge to the jury is open to criticizm in matters of detail that this Court will interfere, in appeal. Language may be used too broadly or not happy in its expression; but the essential point for consideration is whether the case against the accused has been fairly brought to their notice which may appropriately guide them in deciding whether the accused is guilty or innocent. When there are more than one accused, it is in the first degree essential both that the jury should be asked for a separate finding regarding each of the accused and that the particulars of the evidence affecting each person should be placed in a manner which may enable the jury to distinguish the cases of accused as against whom the evidence is not of the same degree of cogency. It is in this respect that I do not think the charge to the jury which we are considering, has met the necessary requirements of justice. I am of opinion that if the particulars of the successive statements of Sudin affecting the several accused persons had been clearly placed before the jury, the difference between the cases of the first two appellants and the third and the fourth would have struck them so forcibly that in all probability the verdict with regard to the latter two would have been different.

19. Had this been a case for our decision on facts, I have little doubt that we should have acquitted the third and fourth accused. As regards the first two accused, the evidence was clear and the defects in the charge which I have noticed have not seriously touched the case against them. Nor are the sentences imposed upon them excessive.

20. I would dismiss the appeal of Tusuf and Hafiz and would allow that of Rahim and Lakku and set aside their convictions. The Assistant Government Advocate has suggested chat if the charge is held to be defective a retrial may be ordered. I do not consider that a retrial should be ordered when the evidence against these two accused is so manifestly deficient. I would acquit them.

Mohammad Noor, J.

21. I agree. There has been a failure of justice in the case of the two appellants Rahim and Lakku on account of the learned Judge not placing before the jury the distinctive feature of the evidence against them. The only witness who claims to have reached the field of occurrence immediately after the alarm was raised, was definite up to the examination in chief in the Court of Session that the complainant named only two culprits (Yusuf and Hafiz). But in cross-examination he stated that he had also named other accused but he did not remember their names.

22. This was contradictory to what he stated in the committing Magistrates Court where he had stated that Sudin did not mention the name of anybody else as thieves or as his assailants. At one place the learned Judge said that in cross-examination P. W. 4 (Manku) has stated that Sudin did mention other names beside Isso and Hafiz but he did not follow that, He however did not point out to the jury that this statement was contradictory to what the witness had stated before the committing Magistrate. The attention of the jury ought to have been drawn to this fact and also to the fact that out of the three persons who reached the scene immediately after the alarm was raised, Manku (P. W. 4) was the only one examined.

23. As to the attack of the learned advocate for the appellants on the general remarks of the learned Judge about the value of omissions and contradictions in the evidence of witnesses before the police and the committing Magistrate, the charge of the learned Judge contains two such general remarks.

24. The second which is taken verbatim from Queen Empress v. Naziruddin (1894) 16 All. 207 has been elaborately dealt with by my learned brother and I entirely agree with his observations in that connexion. The first passage is obviously an extract from the charge of another learned Judge of this province which was quoted in some detail with approval by Courtney-Terrell C.J. in Hari Lal v. Emperor AIR 1935 Pat. 263. I remember to have noticed the same passage in another charge of the learned Judge which came before us the other day. I also noticed the same passage in the charge of another learned Judge and I expressed my views on it in Bulak Gope v. Emperor reported in AIR 138 Pat. 575 decided by Verma, J. and myself on 9th August 1938. There I pointed out and I repeat again that, in my opinion, the learned Chief Justice never intended that two or three sentences from the passage which he had quoted should form part of every charge to jury irrespective of the consideration whether they are applicable or not. In fact, the learned Chief Justice stressed not so much upon the value of omissions or contradictions as upon the value to be attached to the statement of witnesses elicited in cross-examination by monosyllable answers which in a number of cases are not the statements of witnesses themselves but practically the statement of the cross-examiner who put the questions to which the witness answered in the affirmative or negative. After quoting a long passage from the charge of a learned Judge of this province, the learned Chief Justice commended it in these terms:

It is very seldom that one finds in a charge to the jury, and indeed in a judgment itself, such an excellent and courageous statement of principle and the learned Judge seems to have properly performed the judicial function of controlling the cross-examination and insisting that the witnesses shall understand the question put before an answer is obtained, or before an answer is recorded. I have over and over again myself observed that cross-examination tends to be abused and the words of the advocate are recorded as the words of the witness when the witness has in fact only given an affirmative or negative monosyllable, furthermore, the fact is not sufficiently brought home to juries and not sufficiently remembered by Judges, that the words of the witnesses are recorded by the Magistrate and by the police in a language which they do not in fact speak and therefore accurate recording is often a matter of accurate translation as well as of the rendering of sentences and the meaning of the statements of the witnesses. I would recommend the passage that I have quoted to Courts which have to deal with criminal trials as well as those which have to do with civil trials, as an admirable statement of principle.

25. It is obvious that the learned Chief Justice had in his mind the answers in the affirmative or the negative elicited from witnesses by a cross-examining lawyer by putting to them long sentences. This was the chief thing to which the learned Chief Justice drew the attention of the Courts and, as I have said, he never meant that the quoted passage, much less a portion of it, should be a sine qua non of every charge to the jury, whether they are appropriate or not. How inappropriate the observation of the learned Judge in this base is will be apparent if I take up some of the omissions and contradictions on which the defence relied before us.

26. Mr. K.K. Banerji has referred us to the omission and contra, dictions about the naming of the accused at the various stages of the case. It is needless to say that any police officer or any committing Magistrate who knows his work will omit to record the name of the accused for the reasons which have been referred to by the learned Judge. I have said that Manku (P. W. 4) definitely stated before the committing Magistrate that the complainant did not name any other accused excepting the two only, Yusuf and Hafiz. In his evidence in the Court of Session in cross-examination he stated that the complainant had given more names but he could not follow. I take another instance in connexion with the witness, Kartik. It has been elicited in the cross-examination of the investigating officer that this witness had not stated that the complainant had named to him any of the accused. He adhered to his statement before the committing Magistrate. His evidence before the committing Magistrate ran thus:

I did not ask any of them what the matter was. They also did not tell me anything. Seeing so much I came home. In the morning I went to Sudins house. Sudin was then being taken to thana. I did not ask anybody nor anybody told, me even at that time what the matter was.

27. But, curiously enough, in the Court of Session he says:

I went to the ghar of Sudin whom I saw and then Sudin told me that Isso and Hafiz had assaulted him with lathis.

28. These contradictions cannot be brushed aside on account of the fact that the committing Magistrate recorded evidence in substance preliminary to commitment. The observations of the learned Judge had absolutely no application whatsoever to the omissions and contradictions which were the subject-matter of comment by the defence in this case. There is one other matter to which I wish to draw the attention of the learned Judge and this is one to which the learned Chief Justice in the case referred to above laid great emphasis. It is not uncommon for a cross-examiner to put to the investigating officer whether such and such a witness stated such and such a fact to him. The investigating officer consults his diary and answers in the negative. In fact, the negative answer does no justice-either to the case or to the witness whom the cross-examiner holds up as untruthful It is desirable that when an investigating police officer is being cross-examined as to previous statement made to him by the witnesses for the prosecution the Court should have the police diary before it and see whether the negative answer of the officer really gives a picture of what the witness in fact had stated.

29. If not, the fact should be borne in mind and the Court should watch whether the matter is cleared up in re-examination. Section 162, Criminal Procedure Code, provides:

When any part of such statement is so used (that is to contradict a witness) any part thereof may also be used in reexamination of such witness but for the purposes only of explaining any matter referred to in cross examination.

30. It is therefore the duty of the Public Prosecutor to see that the negative answer from an investigating officer in respect of the statement of a witness does not create a wrong impression of what the witness stated before the police. He must in these cases bring about other statements to explain the matter referred to in cross, examination. If the Public Prosecutor fails to do so, it is the duty of the Court in fairness to the case and to the witness to bring about facts which will clear up the negative answer. This will be legitimate use of the police diary and one of the modes of taking aid from it in the trial. There are a number of instances in this case in which one or two questions in re-examination or by Court would have created quite a different impression about the evidence of a particular witness than one can gather from the negative answers of the investigating police officer as it stands.